Prop 8 decision Tuesday:
After a longer-than-anticipated delay, the California Supreme Court will issue its opinion in the Proposition 8 challenge on Tuesday at 10 a.m. Pacific time. There are two basic questions before the court:
(1) Is Prop 8 a valid "amendment" of the state constitution or an invalid "revision"?
(2) If Prop 8 is valid, and thus marriage is now limited under the state constitution to one man and one woman, what is the status of the thousands of California same-sex marriages entered between June and November 2008?
The conventional wisdom has been that the court will uphold Prop 8 but will also declare that the interim same-sex marriages in the state are valid.
That is, what if you think that the legal moves required for Prop. 8 to be acceptable as an amendment are themselves tantamount to a revision? This means that if the proposition is an amendment and upheld by the court, a revision of the constitution has taken place.
I think California SC will invalidate Prop 8 entirely, basically on the basis of "Who the hell do the voters think they are, contradicting us on this?"
Steven, I suspect you'll be eating crow.
I remember a case several years ago where an opinion leaked about 10 min. early because the IT person put the .pdf on the web server early any figured they'd just add the link at the scheduled time, which was noon. One of the news folks had the naming convention figured out and was hammering the server for the file name.
Question #2 is a closer and I think difficult question.
I'm not sure why it's difficult, although I admit I havn't fully followed the arguements. Also, would an interpretation that validates the existing marriages also allow for the recognition of out-of-state marriages?
That would be very strange, since the, afaik, the litigants were not asked to address federal constitutional issues. The question was whether prop 8 violated the California constitution.
Actually, at the oral argument, a number of the justices who voted to legalize gay marriage the first time around seemed to express the sentiment that it was not their place to overturn the voter-approved constitutional amendment.
That is actually what I consider the best possible outcome. I will be very surprised if the court goes for it however because that direction seems even more likely to generate recall petitions than invalidating the amendment would.
(According to Wikipedia, the last time we held a revision commission was from 1964 to 1976, with the net effect of removing 40,000 words from the constitution.)
I don't know why folks, gay or straight, want a bunch of bueaureaucrats telling them whether or not they're married anyway. I can see why gay folks think it sucks having the govt disagree with them about their marital status, but alot of folks act like the govt's oppinion actually makes the difference.
That would be a silly ruling that would result in the justices who voted for it to share a similar fate as Rose Bird.
I agree with you that it will be surprising if the Supreme Court rules the changes a revision rather than an amendment. However, it is not true that the only relevant factor is the "amount of text in the California Constitution that is changed or rearranged." See Raven v. Deukmejian (1990).
Or... you could just read the press release that accompanies the decision, which is what I did when I went down to the Courthouse for the Marriage Cases decision. It's a lot more to the point.
It's because the CIA hates America.
If I were a judge I would make sure history knew that I opposed bigotry like Prop 8 but was powerless to stop it.
1) It's an amendment. /story
2) Existing marriages will be treated as if they were performed in a state that allowed gay marriage (1.e. Vermont). Which meanes, if my intuition is correct, that we'll have the perverse situation where a California marriage will be recognized as such by the state of New York, but not in the state it was performed in.
Look for quickie legislation for existing SSM (be it CA or out-of-state) to be treated as civil unions for the purposes if CA law. Should take all of a week to pass. This may be mandated as part of the opinion itself but will happen regardless.
Of course I know the answer. They were hoping the voters would reject P8-- but they didn't. Thus if CASC upholds P8, then the Gay Mafia will get mad at them, and throw all kinds of tantrums. They might even set some cars on fire in The Castro. But if they throw out P8, a lot of CA voters will also get very mad them, including some who voted against P8. They might even remember what happened to Rose Byrd (brain), Cruz Reynoso and Joseph Grodin in 1986. They got thrown off the bench by the voters. Of course today CA is a Hispanic state and the politics are different. But that's a problem too because blacks and Hispanics don't like this SSM much either. What's the worst thing you can call a Hispanic? The answer is here.
Nick
What reason would the state have to grant same-sex civil unions?
http://tinyurl.com/Prop-8-twitter
That's a interesting observation. Not sure what significance, if any, that it has. But, it certainly seems to be true.
Perhaps, you have to answer why there are leaks in other parts of the government. Perhaps it's a trial balloon, perhaps it is to embarrass an opponent, perhaps it is to shape the media narrative, perhaps to bring public pressure to alter a policy. Probably lots of more reasons. But, none seem to apply to judicial opinions. So, if I had to hazard a guess at your question, I'd say that leaking judicial opinions doesn't serve the interest of those in the know. Maybe this means with every leak, there's a hidden agenda of the leaker.
Well, some folks prefer to have a marriage contract that spells out certain property rights, etc. 'Course I'd just let normal contract law handle it, and open it up to more that just two people.
It seems pretty obvious that those are the legally correct answers. Whether that's what California will come up with, of course, is another matter.
Yeah, just like that pious, nasty, bitter liberal Justice Thomas in Lawrence v. Kansas:
Why do these liberals have to insult decent voters?
That's not what the EPC stands for.
It takes two seconds of reflection on the actual state of laws to realize this sort of utopian desire is just absurd. Following it up with the claim that "contract law" can handle issues quite well is even sillier. Partner A, an American, is in a relationship with Partner B, who is not. If A and B are opposite genders they can marry and B can apply to stay with A at their home in the US. If they are of the same gender A and B are out of luck. Exactly how would contract law change that?
If a straight man, arrested for a crime, your wife can't be forced to testify against you. If you are a gay man, arrested for the same crime, your partner has no such right. How will using contract law solve that?
Gay couples are taxed at different rates than straight couples purely on marital status. They aren't "married." How would any private contract resolve that?
Gay couples are forced to pay into social security at the same rate as straight couples but paid out at very different, rates. How can a contract resolve that? Or perhaps you like the idea that gay couples are subsidizing social security for straight couple?
There is a lot of naive assumptions made by some of my uninformed fellow libertarians. And the idea that private contract can solve the conundrum is naive at higher levels.
Amend the immigration statutes to allow parties to such a contract the right to apply to stay with the other partner.
Amend criminal procedure statutes to allow the parties to a private contract the right avoid testifying.
Amend the tax code.
Amend the tax code.
You act as if this stuff cannot be resolved by any other means.
You are dead wrong.
All your examples are good reasons against SSM. We already have too many bogus marriages to get people into the country. SSM will increase the number at a cost to the taxpayers.
The reason we give certain special benefits is so people will marry and have children. Marriage is all about children. Two gay men cannot make a net contribution to total fertility. As a couple they are sterile.
Presumably that would be because the standard for getting a preliminary injunction is quite different than the standard for prevailing at trial.
The reason we give certain special benefits is so people will marry and have children. Marriage is all about children.
And yet somehow we still allow opposite sex couples to marry without requiring them to produce children, or to be able to produce children or even to want to have children.
That's right. We do that because we know that in general people who marry have sex and produce children. Not all, but enough. What would we do: revoke the marriage license if the couple remained childless for some number of years? It would not be practical. But a fortiori gay men cannot add to the net fertility.
"Presumably that would be because the standard for getting a preliminary injunction is quite different than the standard for prevailing at trial."
That's a good answer if the trial standard is higher. But would the public understand the distinction? They might get mad at the court for allowing the election to proceed anyway wasting time and money. The court knows this and being political animals might not want to call P8 a revision. If they want to smack down P8, I think they need another reason. That might fly a lot better.
Cheers,
P.S.: Clue for Zarkov here: It seems that it's not a requirement to be married to have sex ... or even to produce children.... Why does the word Claiburne come to mind?....
"And yet somehow we still allow opposite sex couples to marry without requiring them to produce children, or to be able to produce children or even to want to have children."
That's right. We do that because we know that in general people who marry have sex and produce children.
Emphasis added.
So it's all about having children "in general," i.e. except when it's not.
"Presumably that would be because the standard for getting a preliminary injunction is quite different than the standard for prevailing at trial."
That's a good answer if the trial standard is higher. But would the public understand the distinction? They might get mad at the court for allowing the election to proceed anyway wasting time and money.
So the court shouldn't apply a law if the public wouldn't understand it or if the public would get mad?
The historical roots of the marriage relationship come from sex and children. Marriage provided a man with exclusive sexual access to one or more women. There is a real civilizational advantage to such an arrangement. Marriage provides for a clear line of inheritance and thus and orderly transfer of property between generations. In other words, the marriage institution reduces conflict, and conflict impedes civilization.
As for running out of humans, in some places that's a problem. For example, the total fertility rate in Germany is 1.41. This means the German population is shrinking at the rate of 1.5% per year. In the USA white people have a TFR of 1.86 which means they shrinking at a rate of almost 1% year.
It seems that it's not a requirement to be married to have sex ... or even to produce children....
So you want to encourage people to have children without being married?
If we think that producing children with a stable two-parent family is a benefit to society, then we should offer incentives to people who at least have the potential to have children. We could deny marriage to infertile couples, but that would be hard to enforce. How do you prove fertility? So we ignore the exceptions as a practical matter. But granting marriage to gay men will not gives us children. They would have to go outside their marriage and find a woman to provide them with a child. There is no benefit to society to granting marriage to gay men because they cannot add to the net fertility of the population.
So, any employee need never testify against his employer?
Even with very explicitly spelled out restrictions, there are going to be huge loopholes with this proposal.
If we think that producing children with a stable two-parent family is a benefit to society, then we should offer incentives to people who at least have the potential to have children.
If we think that producing children with a stable two-parent family is a benefit to society, then we ought to encourage gay people to marry each other so as to avoid the creation of unstable marriages between gay men and straight women. And we should also encourage same sex marriage so as to provide a greater number of stable families for those children who, for whatever reason, are up for adoption. And we should allow same sex marriage because doing so does nothing to prevent opposite sex couples from getting married or having children.
Then perhaps the conventional wisdom displays more insight than you do.
If a gay man is married to a woman, and the marriage is bad enough to make him unstable, then why would he need a SSM law to leave his wife? Why would he just not leave his wife and take up with some man? He doesn't need SSM to cohabit.
Perhaps you think SSM will prevent gay men from getting into bad marriages with women in the first place. Perhaps. But again, they don't need an SSM law to form relationships. SSM is all about granting special privileges, and what you assert seems like a third order effect at best.
Just because the policy is over-inclusive doesn't mean that it must or should be made more so.
Perhaps you think SSM will prevent gay men from getting into bad marriages with women in the first place. Perhaps. But again, they don't need an SSM law to form relationships.
I'm content to let them decide for themselves what they need and not to decide that for them. You said you wanted to avoid unstable marriages. It seems to me that SSM will assist in that goal so why not support them? What's the harm?
Just because the policy is over-inclusive doesn't mean that it must or should be made more so.
It does, however, pose the question of why you're willing to make an exception to the "all about children" rule for opposite sex couples, but not for same sex couples. I haven't seen a good answer to that yet.
Gay parents may follow what is expected of them without fully understanding their sexual identity because it went unquestioned. As long as the alternative is unequal, it may not be viable for those seeking a career in many professions.
Adoption being a societal benefit, procreation is unnecessary to raise children, not to mention gay women using fertility clinics, but regardless the U.S. S.C. has uniformly rejected child-rearing as a legitimate government interest.
However this does not directly bear on whether Prop 8 is a invalid revision or a valid amendment to CA constitution.
Cheers,
i'd like to take a brief moment to declare cornellian the thread winner! He certainly has earned it.
I believe this court is very well known for legislating from the bench, no?
To me (and as a Californian citizen, voter and tax payer who would like to enjoy equal legal rights again, I am certainly biased), the crux of the case before the court surfaces neatly in the interchange between Ken Starr and Chief Justice George wherein George pressed him on what rights exactly the bare majority of voters were qualified to strip away from a minority group, and Starr followed the reductio ad absurdum straight down into the abyss, claiming that even their right to freedom of speech could be abolished, as long as 50.1% of voters say so. George didn't pursue whether this logic extends also to the rights to life and liberty, but I think that question was nonetheless palpable.
Would it be the court's duty, for example, to uphold the reinstitution of slavery at the behest of 52%?
The whole thing is as ridiculous as it is deeply hurtful. Ridiculous because marriage equality is a foregone conclusion: five states already, soon to be six, and a cursory glance at any polling data confirms that only the oldest generations have majorities against it, and opinion seems to be changing faster with each new state that overturns the ban. With the way the opinion polls are trending, putting the issue back on the ballot once again in California will restore same-sex marriage by 2012 if not 2010. So then, why do we care now? Because of the ugliness of the reminder that in the eyes of current California law, I am considered "less than," and because no one should have to say, "Sure, I'll sit at the back of the bus for one more year." The judicial branch of government does have a job to do, dammit, and I think the sitting justices should agree that that job includes preventing the electorate from forging a state constitution that blatantly contradicts itself, by simultaneously guaranteeing and denying equal protection of the law to all classes of citizens. I think it's vitally important that the court set a judicial precedent to uphold the checks and balances that were deliberately put in place precisely to defend against oppression.
That section of the constitution could be also be amended by referendum, yes. (Of course, slavery would still be prohibited by the Thirteenth Amendment.)
Personally, I think allowing constitutional amendments by popular vote is kind of a stupid system, but I didn't come up with it. But as long as that's the system, the court is obliged to follow it. (Well actually, I guess they may NOT be obliged to follow it, which is what worries me, but you know what I mean.)
Granted, the system is ludicrous, and that's why our state constitution is in the mess that it's in (in many ways).
However, isn't the question before the court a fairly novel investigation of the ambiguously worded distinction between amendments and revisions? Sure, the people have an inalienable right to change their constitution, but if exercising that inalienable right involves removing another inalienable right (or a "fundamental right," to borrow a phrase from In re Marriage Cases which borrowed a phrase from Perez v. Sharp), what, if not that, would qualify as "a substantial change" and thus a revision?
Article 1 - Everyone is equal
Article 2 - Class A people have more rights than Class B people
So will the constitution itself be unconstitutional?
Well I'd agree that it's novel but I don't think it's ambiguous at all — as far as I can tell, all the relevant precedent seems to say that it is definitely and definitively not a revision, including the unanimous Alaska Supreme Court decision on the same question.
No.
Yes and this is the real crux of the issues presented to this court. A simple and straight forward catch 22 for the CA SC. No matter which way they rule they will piss people off so I hope they take the high road and invalidate a constitutional revision/amendment that strips a whole class of people of their civil rights.
If the concept of suspect classes was a fundamental constitutional concept, it would surely appear in the constitution.
Of course this begs the question. If a proposition like Prop 8 had been passed before In Re Marriage Cases was decided, would it be a revision? If not, how could it be a revision after the decision?
The judges took an oath to uphold the constitution. There is no contradiction in believing that In Re Marriage Cases is correct and believing that Prop. 8 is a legitimate amendment.
In Raven , part of the amendment in question effectively transferred the state courts' interpretive power to the U.S. Supreme Court. Note that the amendment was not completely overturned; other portions were allowed to stand, even those portions that affected Article I legal protections.
Justice Stanley Mosk made similar comments about the death penalty in Frierson
The court is subordinate to the U.S. Constitution and the state constitution.
The later provision overrides the earlier provision.
Note that the EPC was adopted as an amendment ; therefore, it can be modified or repealed by amendment.
As I've stated numerous times, I have no objection to excluding opposite sex couples who don't procreate. As for same sex couples, we know that procreation within the marriage is biologically impossible merely by the fact that the marriage is composed of two members of the same sex. In any event, the demand is just abstract egalitarianism run amok.
How would that work?
I think that, according to that point of view, anything that contradicted the equal protection clause would be a revision. The revision view takes the equal protection clause at absolute literal face value, although admittedly to do so one has to ignore much of history. At almost every time and place, the equal protection clause has been more of an abstract ideal than a legal reality. Statements like "all citizens are equal before the law" historically was understood as meaning "all white Protestant Christian heterosexual men are equal before the law" because equal protection for other people was a dead letter. However the concept of equal protection under the law for all citizens has been gradually expanded to be read more and more literally as actually referring to the whole citizenry including non-white, non-Christian, non-heterosexual, female, etc. members. Some countries' constitutions try to expand this process faster by actually specifying all the minorities that equal protection really applies to, although I believe only the constitutions of Portugal and South Africa explicitly mention gays and lesbians, among others, as enjoying equal protection under the constitution. Does this mean that every racist or sexist or heterosexist law ever on the books was an assault on equal protection? Yes, but it is only now that we are beginning to take equal protection seriously.
Marriage may be about children, but it's about raising children. Just because opposite sex couples can put tab A into slot B and procreate doesn't mean they have to do so in marriage. Heck they can be married, procreate and give the child up for adoption. There are many non-procreative couples that marry. They may adopt... just as same-sex couples may adopt. Procreation is not the only way that a child is introduced into a marital relationship.
And let's not forget that these same-sex couples will be raising the children of those heterosexual folks who just didn't seem to care enough... but these "pump and dump" baby mills still get to be married while a same-sex couple can't... but raises who's raising the child.
Hmmm... well, just so long as we're caring about the children, right? It's all about the children.
If you could get 2/3 of Congress and 3/4 of the states to go along with it then yes, slavery would again be legal. Of course by the time you actually reached such a threshold the issue likely wouldn't be very contentious.
If you think protections beyond those provided by the federal constitution should be entrenched beyond the ability of a bare majority to recind then perhaps you should get such a measure on the ballot. That one might in fact require a revision however, as it changes the nature of the government itself.
A more clear example of what would be an obvious revision would be restructing the government to have just two branches, legislative and judicial, with the legislature hiring outsiders to execute the laws.
The court will lose it's legitimacy if it rules otherwise. However foolish, an amendment to a constitution is not unconstitutional and to argue otherwise is not only foolish but leads to the disrespect for the court. While easy to say for a straight person to say to gays hold on your day will come, I'm sure it is frustrating in the extreme for gays who wish to be married. That said, SSM will eventually be the norm throughout the land and efforts to circumvent the people far from speeding things up probably have the untended effect of slowing things down. It is better to win in the legislatures and on the ballots than in the courts. Thirty years ago I was against it, now I am not. I admit to a certain level of hypocrisy in calling it a marriage; perhaps I will get there soon enough, but call it anything else and as a practical matter give it the same legal status as marriage and thats fine by me. I believe that most people are in the same area I'm in. As for boy scout leaders and adoptions, I have yet to see any empirical evidence that gays are more prone to pedophilia or pederasty than straights so the bugaboo about gays and adoptions is no more a concern that that among straight people. Still I believe all else the same children should be raised by two loving parents of the opposite sex but far better to have a loving gay couple adopt than have a child raised in foster care or an orphanage.
Doesn't the equal protection clause logically imply the concept of suspect class? Seems like an inescapable consequence to me (though sometimes inescapable logical conclusions nonetheless take some time to reach, which is why racial discrimination laws survived so long).
@Soronel Haetir, wrt the process for changing the federal constitution to reinstitute slavery:
Yes, you're right (barring uprising). But there are very good reasons why such a substantial change to the federal constitution is so difficult and requires more than bare majority. Clearly the authors of the California constitution had this in mind when they created the distinction between amendments and revisions. I think at the very least, the issue of whether rewriting to specifically deny fundamental rights to a suspect class in fact constitutes a substantial change to the fabric of the constitution is not clearcut.
Currently, amendments to the state constitution require a majority vote to be ratified. It would require a revision to change the threshold.
Most people grudgingly accept judicial review on the basis that courts should uphold the constitution.
It is a far different matter when courts can decide what can and can not enter the constitution.
There is no case law suggesting such a thing. In fact, the amendment process has been the same since 1911, while the equal protection clause was only adopted in 1974, and then only by amendment, not revision.
If it is implied, then it is not fundamental.
The equal protection clause itself was not adopted until 1974, and then only by amendment.
Apparently, adopting a clause which provides a basis for recognizing legal protections of the rights of suspect classes was not such a substantial change that it required a revision.
We have all reached a different place in this debate, even gays. Ten years ago there was no legal gay marriage in any country (the Netherlands was the first in 2001). Now we feel insulted that there is not gay marriage everywhere. How could this have changed so fast? Ten years ago when I was 20 I did not imagine that there would be gay marriage in the US in my lifetime. There as no gay rights movement where I lived. I felt "lucky" if I had a "generous" boss or "nice" landlord who treated me the same as a straight person. I thought that almost all straight people were homophobic and were not to be trusted. Since then our issues have become mainstream in the US and I have acquired a lot of faith in straight people to be good that I never had before. I have gradually come to the realization that being paid the same at work, having equal access to renting apartments, having respect given to my relationships and finally even being allowed to choose to get married is not "lucky" but a right. Ten years ago I would have considere a term like "equal protection" was just empty rhetoric or in any case heavily asterisked. Then I became impressed by the passion that straight people had for our issues, and I have a lot of faith in them now.. I have gay friends from all over the world. Those from the Arab world are just thrilled to be living in the West and physically safe, they are not angry that there is no gay marriage in their countries. It's sort of like if you give a hundred dollars to a destitute person they feel rich, but if you give it to an American when his friends get 150, he feels insulted.
Dear President Obama,
I’m writing to you, as a member of a minority group, seeking your opinion regarding your views on “equal protection under the law”. I am a citizen of the United States, I am gay, and therefore am a member of a minority group. The debate regarding same sex civil marriages has recently hit fever pitch in this country. Recently, Maine Governor John Baldacci signed his state's same-sex marriage bill less than an hour after the legislature approved it. He stated, "I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage."
Why is it that Federal Law does not seem to uphold the same high standard of fairness and equal protection under the law? In fact, Federal Law actually pro-actively discriminates against couples that legally have same-sex civil marriages. The fact is that the federal Defense of Marriage Act defines marriage as a union between a man and a woman. The act also specifically denies federal benefits to same-sex couples that have legally state sanctioned civil marriages. The act further dictates that any federal law that applies to married couples does not apply to same-sex couples with legal civil marriages.
Furthermore because of the federal Defense of Marriage Act the United States Census Bureau is currently “editing” the 2010 census responses of same-sex couples that married legally in California, Massachusetts, Iowa, Maine, and Connecticut. Does that sound like the United States of America? When asked to describe their relationships to others in their household, if a respondent refers to a person of the same gender as their "husband/wife" on the 2010 census form, the Census Bureau will automatically assign them to the "unmarried partner" category. Legally married same-sex couples will be indistinguishable in census data from those who chose "unmarried partner" to describe their relationship. The federal government does not count us, and apparently according to the government we don’t count.
As a physician who treats hundreds of indigent/ un-insured, as well as, insured patients (straight and gay) annually in Los Angeles, I am particularly outraged at the fact that the federal government continues to discriminate against legal same-sex couples and their children and family members by specifically leaving them out of the federal Family Medical Leave Act (FMLA). This Act requires covered employers to give eligible employees up to twelve weeks of unpaid leave for their own serious health condition or to care for a family member with a serious health condition. Currently, the FMLA does not require employers to provide leave to care for a legally married same-sex spouse. Are we not human? Do we not deserve the same compassion and assurances from our government to which we pay taxes, as other citizens of the United States? Is this consistent with “fairness” and “equal protection under the law”?
How would you feel if this country still denied inter-racial marriages simply because 51% of the population felt they were immoral or un-ethical or unnatural? The state of Hawaii, not the United States of America, allowed your parents to marry in 1961. There was a lack of federal leadership, yet finally in 1968 all state inter-racial bans on marriage were thrown out. This was a very long time to wait for equality, in fact, as I’m sure you are aware the fight for inter-racial marriage began in 1948, it took 20 years of states arguing, state constitutions being “amended” to allow discrimination (sound familiar), until all the madness was finally overturned by the federal government because they finally did the right thing and gave these citizens equal protection under the law.
As Americans did we not learn from our ugly history? As an African American growing up in the United States, you of all people, should recognize the need for federal regulation to protect and treat all citizens equally. Why do you feel gays who chose to have a civil marriage, should be treated differently than inter-racial couples? Why does the “equal protection under the law” clause in our constitution not apply to us? If you think homosexuality is a lifestyle choice that can somehow be overcome, and therefore not be given an equal if not protected status, then I ask you to think about this. Suppose someone told you, you could not have federal recognition and rights under marriage, you could not be counted in the census and that your responses to the census will be edited, and you could not benefit from the Family Medical Leave Act, unless you were forced to separate from Michelle, the person you love dearly, and marry another man. If you did that then you would be recognized as married. How unnatural would that feel for you? Get the point? We are born gay, just as you were born black. No difference. Just as you had no choice in being born black, we had no choice in being born gay. Furthermore, you certainly can't argue that you "chose" to be heterosexual; it is a ludicrous argument when people say we "choose to be gay". We certainly have more similarities in our plight for equal protection under the law than differences. Remember, this is not a religious argument, it is a civil rights argument. We don’t want to force religions to accept gay marriage; we just want equal protection under the law. We don’t want to force anyone into saying they believe in gay marriage, everyone has the right to believe what they want. We want to be treated equally and with dignity; and not ostracized by our federal government.
President Obama, I am asking you to think about your own experiences growing up in this country as a minority, and how helpful the federal government was in assuring you equal protection and equal rights under the law. My husband and I are law abiding, federal tax paying citizens, who contribute greatly to our community and society at large; we along with millions of other same sex couples are simply asking to be treated equally by our government. Is that too much to ask for in the country for which you are president? I am calling upon you, President Obama, to stand up to the narrow-minded bigotry that has made its way into federal law and to do the right thing. I am calling upon you to forcefully overturn the federal Defense of Marriage Act. I am calling upon you to be the agent of change, which you had talked about during your campaign. I am calling upon you do to do what is right and just, and treat all Americans equally. I am calling upon you to help secure passage of the bill now moving through Congress imposing new federal penalties for anti-gay hate crimes, as well as legislation allowing gays to serve in the military. I am calling upon you to call for vast federal civil rights legislation, outlawing discrimination based on sexual orientation and granting us a basic umbrella of protections in employment, education, and housing.
Like you, I believe that everyone can help contribute to change for the better in our country. Change we can believe in. Five states have legalized same sex civil marriages; several are well on their way. We need a leader to insure equality. It took twenty years for the federal government to put an end to all the anti inter-racial marriage bans in this country, how long we will have to wait?
You seem to be misunderstanding what I mean by the word "implies." I am talking about the strict definition of the word in logic, which is in complete agreement with the descriptor "fundamental."
You might be interested in _The California State Constitution: A Reference Guide_, by Grodin, Massey and Cunningham. It describes in detail how the concept of equal protection of the laws was broadly applied by the California court throughout the 20th century, especially after 1970, and was considered to be a logical implication of the language of the constitution well before this was "buttressed" by the explicit 1974 addition. In this context, by the way, it becomes clear that this amendment explicitly affirming equal protection was in no way a substantial change. Striking down the entire history of equal protection precedent (predating the '74 amendment), on the other hand, is arguably quite substantial.
I'm also interested in a side question. What's to prevent the people from rewriting the Constitution in such a way that the language no longer makes logical sense? Already, these literally adjacent paragraphs seem to completely contradict each other, yet supposedly both remain in effect:
If it's not the court's job to make sure that rewriting of the constitution results in a document that is still internally consistent, then whose is it?
Let us take a look at the United States Constitution.
It is clear that the later provisions have precedence over earlier provisions.
Your federal example isn't entirely applicable in that the amendment in question actually struck the old language and provided new language. The CA amendment under question only provides new language. As long as it is correctly ratified the new language should always control. That new language may run afoul of federal protections, but I don't see that being applicable here.
I do however agree that the CA SC should accept that the voters have spoken.
I'd hazard to say that Soronel's correction doesn't go far enough: it isn't applicable at all, for the reason he stated (that no language was explicitly superseded; language was only added, which contradicts language that otherwise remains in full force). For the constitution not to become (even more of) a structural mess, should it not be required to rewrite or strike the earlier language? The superseded text describing senatorial appointment in the federal constitution can now not be referenced in any legal proceeding. The same is clearly not true of section 7b of article 1 in California's.
@Soronel Haetir:
How is it not applicable? The 14th amendment was written specifically to prevent unequal protection from being legislated by the states (including their constitutions), and the California court previously decided that civil marriage is clearly a legal protection that must be considered in this context to be due in equal measure to all classes of citizens, gay and straight alike.
Read Section 27 of Article I of the state constitution.
This means that the death penalty itself can not be found to be a violation of the state equal protection clause.
Baker v. Nelson. I will let Justice Joyce Kennard explain it for you.
"[I]ndeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. After the Minnesota Supreme Court held that Minnesota laws preventing marriages between persons of the same sex did not violate the equal protection or due process clauses of the United States Constitution (Baker v. Nelson (Minn. 1971) 191 N.W.2d 185), the decision was appealed to the United States Supreme Court, as federal law then permitted (see 28 U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high court later dismissed that appeal “for want of substantial federal question.” (Baker v. Nelson (1972) 409 U.S. 810.) As the United States Supreme Court has explained, a dismissal on the ground that an appeal presents no substantial federal question is a decision on the merits of the case, establishing that the lower court’s decision on the issues of federal law was correct. (Mandel v. Bradley (1977) 432 U.S. 173, 176; Hicks v. Miranda (1975) 422 U.S. 332, 344.) Summary decisions of this kind “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” (Mandel v. Bradley, supra, at p. 176.) Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution. The binding force of a summary decision on the merits continues until the high court instructs otherwise. (Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. (Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision... Until the United States Supreme Court says otherwise, which it has not yet done, Baker v. Nelson defines federal constitutional law on the question whether a state may deny same-sex couples the right to marry."
Does not the text you quoted provide a good example of how language ought to be constructed to avoid a self-contradictory document? Why is such disambiguating language wholly absent from the marriage discrimination amendment?
Regarding the SCOTUS role in determining what can and cannot be held to violate equal protection, doesn't continuing force of precedence depend, as Kennard stated, on what the court has done since 1972? But hers is not the only valid opinion regarding how federal evaluation of equal protection has evolved over that time (see Scalia's interesting quotation above regarding Lawrence v. Texas). If dependence on Baker v. Nelson is the guiding factor here, then how was the court's opinion in In re Marriage Cases (in which Kennard herself concurred), in itself faulty? By this argument, you are asking the California Court to reverse its own reasoning in the original case... yet this is not the question before it, since they already affirmed that equal protection, in its current judicial understanding, is improperly abridged by marriage discrimination. The question before the court now is very different, and it is not whether this discrimination violates equal protection, but whether the people can remove equal protection from the constitution via amendment.
Ah, I guess that makes sense. Regardless, as I said above, they already clearly decided that marriage falls under equal protection jurisprudence (of CA's broader definition than the federal, I suppose), breaking with the earlier Kennard opinion quoted above (including Kennard breaking with herself, I guess?). As far as the court is concerned, that matter is settled. We are still concerned here with whether negating equal protection is a substantial change to the state constitution.
Baker dealt with federal issues (specifically, there was want of a substantial federal question) , while In Re Marriage Cases relied solely on Section 7 of Article I of the California constitution.
Of course they can.
Equal protection has no more special status that would make it immune from amendment, considering the fact that the equal protection clause itself was adopted by amendment .
Again, not as substantial a change as introducing equal protection into the state constitution, which had been done by amendment.
It seems you did not read my earlier post (http://volokh.com/posts/1243015219.shtml#588989), since you did not respond to the fact that there's extensive documentation that the California court had recognized equal protection (considering it implicitly guaranteed by the fundamentals of the constitution) long before this was explicitly affirmed (affirmed, *not* created) by the amendment. Thus the fact that an amendment added language supporting a concept the court had previously already judged to be integral to the pre-amendment constitution has no bearing on whether another amendment is sufficient to deny that fundamental concept.
You do not have a Republic if a majority of the moment can remove arbitrary rights from a disfavored minority.
Since I moved to Idaho I've found I prefer their version of the initiative process. Anything passed by an initiative in Idaho becomes an ordinary statute, NOT a constitutional amendment. The legislature can and on occasion has repealed a ballot initiative by a simple majority vote.
On another topic....
If the CA supreme court rules Prop. 8 to be an inadmissible "revision" and not an "amendment", this would be precidence for overturning Prop. 13 as well. Prop. 13 held two unrelated issues, (a) limiting property taxes and (b) requiring a 2/3 vote in the legislature for increasing taxes. Hence Prop. 13 appears to be an impermissible "revision" too. It would be amusing were the courts to invalidate Prop. 13 at this time.
Wrong, as usual. The Congressional Budget Office issued a report several years ago which stated that SSM would actually increase tax revenues.
You might want to do a bit of research before you just make stuff up.
On the topic at hand, I really don't care much how the court rules. Oh sure, I would be happy if they struck down Prop. 8. But I am fully prepared for the fact they likely will not. Within about four years at most, support for SSM wil top the 50% mark in CA, and gays will have the right to marry. By then, all the arguments of the anti-SSM will be found to have been wholly false,because there will be more states that have SSM, and SSM will have existed in Mass and other places for so long, they won't be able to point to any harm. Instead, they will increasingly resort to emotional arguements, and lies such as Zarkov peddles.
No, as again you are wrong. It has been pointed out to you numerous times that lesbians can indeed bear children just as easily as straight women. As lesbian couple may have one or both become impregnated with sperm, and thereby produce a biologial child within the union. Or don't you consider artificial insemination a biological fact?
Or consider the case of a gay man who was married to a woman, had a biological child, then divorces that woman and marries a man. He now has a biological child, and that child now has two dads as parents. Not biological enough for you?
Or finally, since you are so concerned about the children, let's take the very common scenario of a gay couple who adopt a boatload of children. Don't those children deserve the benefits of having parents married? Or is that privilege just egalitarianism 'run amok', as you put it, and so those kids lose because they happened to choose the wrong parents?
In each of those scenarios, you would sacrifice the stability of marriage to those families for no other reason than it makes you uncomfortable. So,does that mean I can deny you any rights I think you shouldn't have? Afterall, I'm very uncomfortable with your free speech rights right now. So I guess I can remove them -- because we don't want to see those rights 'run amok',right?
Which slaves were freed by proclamation?
The process is not arbitrary.
And as Chief Justice Ron George asked during the oral arguments, "Are you saying it is a one-way street -- that you can extend rights by way of initiative and take them away only by revision, the same rights?"
On the futures market, intrade had a spike in the betting on prop 8. A week ago it was hovering around 10 to 15%. In the last day it jumped from 20% to 80% and is now at 25%. The "ask" prices are between 50% to 80%.
Am I reading "bid" and "ask" incorrectly?
Exactly. You can have an initiative that "legalizes", makes real a principle from the constitution but you cannot have an initiative that goes against the grain of fundamental constitutional principles without it being a revision.
Imagine that the constitution of California guaranteed the freedom of the press, but in practice there was heavy government censorship. An initiative is proposed to outlaw government censorship of the media, so that the freedom of the press clause could be really actually applied. It's constitutional. A second amendment takes away the freedom of the press. It would then contradict the article concerning the freedom of the press.
Just to make sure: we can take away any rights from any minority by a 50.1% vote right? So we can have the "flight safety act" saying that Arabs can't be pilots, and we can restore the traditional definition of voting (used around the world) as 1 non-Mormon + 1 ballot, right?
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